American Bar AssociationGeneral Practice, Solo, and Small Firm Division The Compleat LawyerSpring 1997 copyright American Bar Association. All rights reserved.

Groundwater ContaminationA Look at the Federal Provisions

BY CHRISTOPHER GOBERT

Christopher Gobert is a partner in the New Orleans law firm of Osborne, McComiskey, Gobert & Reasonover. He specializes in water quality and resource allocation issues.

Groundwater supplies approximately 20 percent of water used in this country. More than half of us drink it; and that percentage is much higher in rural areas. Groundwater is vital to both agriculture and industry. Across the nation, from 80 to 90 billion gallons of groundwater are extracted daily.

The legal regime governing groundwater quality is complex, making the tasks of evaluating, negotiating, litigating, or mediating a groundwater contamination dispute difficult. It would appear that groundwater quality would be an appropriate subject of uniform, nationwide regulation. Although it moves more slowly than air or surface water, groundwater is oblivious to state boundaries.

Yet widespread recognition of the need to protect groundwater has only recently arisen. There is no federal "Clean Groundwater Act." No single piece of federal legislation addresses groundwater contamination in a comprehensive, coherent fashion. Instead, provisions of federal law applicable to different sorts of groundwater con-tamination are sprinkled among various environmental acts. (By its own count, the EPA is responsible for some 20 separate programs related to groundwater protection.)

The Clean Water Act The Clean Water Act (CWA) prohibits discharges of any "pollutant" into "waters of the United States" except as authorized by permit. Violators are subject to a range of administrative, civil, and criminal sanctions, including substantial monetary penalties and imprisonment. Citizen suits are authorized to remedy ongoing statutory violations (see Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49 (1987)).

The CWA's definition of "pollutant" is important insofar as certain deep well injections associated with oil and gas production are specifically excluded from its scope. Subject to certain other federal statutory provisions, regulation and control of this practice is largely ceded to the states. A second definitional point of interest is whether groundwaters constitute statutory "waters of the United States." This was left an open question when the act was passed.

Twenty-five years later, it appears settled that isolated, nontributary groundwaters lie outside the ambit of the act's discharge prohibitions. Otherwise, debate continues, and today it seems safe only to say that some courts apply the act to some discharges into some groundwaters in some circumstances. A federal district court in the Eastern District of Michigan, for instance, has construed the act to protect groundwater alleged ultimately to affect surface waters. A sister court in the Western District of Michigan concluded, flatly to the contrary, that "Congress did not intend the Clean Water Act to extend federal regulatory and enforcement authority over groundwater contamination." (Compare Kelley v. United States, No. 79-10199 (E.D.Mich. Oct. 28, 1980) with Kelly v. United States, 618 F.Supp. 1103 (W.D.Mich.1985).

Connexity of groundwater to surface waters is thus of initial concern to lawyers, and the importance of obtaining sound scientific data cannot be overstated. Fortuities of venue andjudicial predilections must also be considered, as in almost any environmental dispute.

The Safe Drinking Water ActUnderground injection of certain contaminants into certain groundwaters is proscribed under authority of the Safe Drinking Water Act (SDWA). Underground injection is defined by statute and regulation as the subsurface emplacement of fluids through a dug hole or a bored, drilled, or driven well that is deeper than its largest width. Thus, "fluids" are the contaminants regulated, although one court has construed this term expansively to include waste "converted, before storage underground, into a solid" (see Natural Resources Defense Council v. U.S.E.P.A., 824 F.2d 1258, 1270 (1st Cir.1987)). Groundwater protected is that "which supplies or can reasonably be expected to supply any public water system." A "public water system" is defined as one that regularly supplies piped water to 15 or more connections or to 25 or more individuals at least 60 days a year.

A private water well used for domestic consumption may lie outside the SDWA's scope. An irrigation system serving more than 5,000 rural, residential customers was excluded from the definition of a public water supply because the water was not "piped" (see Imperial Irrigation District v. U.S.E.P.A., 4 F.3d 774 (9th Cir.1993)). Agricultural and industrial groundwater supplies may also be unprotected. Where the statute does apply, generally it prohibits contamination that "may result" in noncompliance with federal Primary Drinking Water Standards, or that "may otherwise adversely affect the health of persons."

The Underground Injection Control ProgramThe EPA developed and promulgated this program (UIC) to implement the SDWA provisions. The program employs a five-tiered classification scheme. Permit requirements and technical standards and specifications depend upon classification. Wells injecting hazardous, industrial, and municipal waste beneath the deepest stratum containing protected groundwater are included in Class I. Class II wells are those injecting fluids in oil or natural gas production. Class III is comprised of wells that inject for solution mining of minerals. Class IV wells, now banned, once were used to inject hazardous or radioactive waste into or above protected groundwater. The catch-all category of injection wells is Class V, including stormwater and agricultural drainage systems, and shallow wastewater disposal wells, many of which are operated by small businesses. Air-conditioning return flow wells, automotive service bays, cesspools, and septic systems, for instance, are included in this class. With respect to Class V wells, the EPA reports that it has adopted a "nontraditional regulatory approach," described as "a carefully tailored combination of guidance, education, and outreach" ( National Water Quality Inventory, pp. 474-75). Most such injection wells are allowed.

Currently, a majority of states have EPA approval to administer and enforce UIC programs within their jurisdictions. In a few states authority is shared with the EPA; in others the EPA has retained it (National Water Quality Inventory, p. 476). In all states, underground injection is now prohibited except as authorized by permit. Violators face a variety of administrative, civil, and criminal sanctions. Citizens suits are also authorized to remedy ongoing SDWA violations.

Sole Source Aquifer DesignationsCertain groundwaters designated by the EPA as sole or principal source aquifers for a given area are also specifically protected by the SDWA. One such aquifer was protected in 1975; by 1986 the number had risen to ten. By 1994, 64 aquifers had been so designated, with additional petitions for designation pending. The effect of the sole source designation is to freeze federal financial assistance "for any project which the Administra-tor determines may contaminate such aquifer through a recharge zone so as to create a significant hazard to public health" ( National Water Quality Inventory, p. 476).

With this increase in sole source designations, the number of federally assisted projects reviewed by the EPA for their potential to contaminate has predictably increased. Conversely, the percentage of projects requiring modification to ensure against aquifer contamination has recently declined. The EPA concludes that the sole source aquifer program has induced a measure of sensitivity to groundwater quality in early project planning stages ( National Water Quality Inventory, pp. 470-71).

Resources Conservation and Recovery ActGeneration, transportation, storage, treatment, and disposal of solid and hazardous waste is regulated under the Resources Conservation and Recovery Act (RCRA). Groundwater (among other natural resources) is specifically protected by this statute. RCRA Subtitle C regulates hazardous waste "from cradle to grave," and accordingly prohibits the treatment, storage, or disposal of hazardous waste except in accordance with permit conditions. Regulations issued pursuant to Subtitle C govern storage, treatment, and disposal methods, as well as the location, construction, and operation of hazardous waste facilities. Groundwater monitoring is required of nearly all facilities; in the event that standards for certain contaminants are exceeded, corrective measures must be undertaken.

RCRA Subtitle D governs municipal solid waste landfills. EPA regulations adopted in 1991 set minimum criteria for new municipal landfills, including groundwater monitoring and corrective action requirements. Existing, noncomplying landfills were ordered upgraded or were subject to closure. Of the 20,000 municipal landfills existing nationwide in 1978, just 6,000 remain today. This reduction is largely due to requirements of Subtitle D.

Underground storage tanks (USTs) are regulated under RCRA Subtitle I. According to EPA estimates, some 1.2 million USTs lie buried at 500,000 sites across the country, usually in urban areas. Most contain petroleum products such as gasoline and diesel fuel. A substantial number of USTs have leaked - perhaps as many as 400,000 - primarily because of improper installation and corrosion. Half of all confirmed UST releases have resulted in groundwater contamination (National Water Quality Inventory, pp. 104-106; 472-73). Owners and operators of USTs are now subject to certain EPA regulations. (See " Underground Storage Tanks: The EPA's Deadline Looms," on page 12.)

Violations of RCRA Subtitles C, D, and I invite various consequences - administrative, civil, and criminal. Subtitle I, for instance, provides for civil penalties of $10,000 "for each tank for each day" of regulatory noncompliance. Under Subtitle C, civil penalties of $25,000 per day of violation are authorized, and knowing violations are punishable by criminal fines, imprisonment, or both. Knowingly placing another person "in imminent danger of death or serious bodily injury" moreover subjects the offender to a $250,000 fine ($1 million if the offender is an organization) and 15 years in prison. Citizen suits are also authorized to remedy ongoing RCRA violations.

SuperfundThe Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), otherwise known as Superfund, was enacted to remediate thousands of waste disposal sites abandoned across the country. The EPA is required to prepare a national contingency plan establishing criteria for hazardous waste site cleanup, and to rank sites eligible for cleanup on a national priority list. CERCLA authorized the EPA to remediate sites listed on the national priority list, consistent with national contingency plan criteria; to undertake emergency removal actions at any site, whether or not it is on the list; and to recover the costs of doing so from statutorily defined responsible parties. The EPA recently reported that of 1,121 sites for which remedies then had been selected, 702 involved groundwater contamination ( National Water Quality Inventory, pp. 476-77).

Potentially responsible parties under CERCLA include past and present site owners, past and present operators, waste generators, and transporters who selected the site for disposal. CERCLA liability is strict, joint, and several; statutory defenses are few and limited. Indemnification between responsible parties is ineffective as against the EPA.

CERCLA litigation is prolific, often involves a multiplicity of financially resourceful parties together with others of modest means, and typically is protracted. Private parties are authorized to initiate remedial action and seek cost recovery from potentially responsible parties to the extent consistent with the national contingency plan. Often, potentially responsible parties orchestrate remediation to avoid litigation with the EPA. A practitioner who is unfamiliar with CERCLA litigation is advised to consult a practitioner who is. EPA guidance documents are also helpful, particularly regarding negotiation and settlement, including de minimus settlement policies. (Settlement with the EPA, if properly effected, protects a party from actions for contribution brought by other potentially responsible parties.) The practitioner is cautioned, however, that EPA guidance policies are merely advisory, and that administrative adherence to stated policy seemingly varies from one EPA region to another (and tends to change with changes in administration).

Other federal statutes that bear peripherally on groundwater contamination include the Toxic Substances Control Act; the Federal Insecticide, Fungicide, and Rodenticide Act; and the Surface Mining Control and Reclamation Act.

Despite the federal presence in the area of groundwater contamination (or perhaps for lack of it), regulation and enforcement of groundwater quality has always been and remains primarily a responsibility of the states. Long before the various federal statutes, there were state common law doctrines of nuisance, negligence, trespass, and strict liability. (In Louisiana, there were obligations of vicinage.) The CWA, the SDWA, RCRA, and CERCLA were not designed to compensate for personal injury or property damage, and leave the traditional private legal and equitable remedies intact. Unless supplanted by state statutory law, lawyers should always consider their application in a given contamination dispute. Often, one or another is substantively controlling; moreover, the lawyer whose client is aggrieved by contamination will likely find them easier to plead and prove.

Today, states are encouraged to take the primary role in groundwater protection, and many have done so, at least in areas of particular parochial interest and priority. Many states have sought and been delegated authority to administer and enforce the various federal groundwater protection programs, and development of certain other programs is federally mandated. States legislate and regulate groundwater quality in any number of different ways - in 50 different ways, it might be fair to say - some more stringently than the federal regulations.

All states have enacted groundwater legislation in the past ten years. A number of states now have a separate "Groundwater Protection Act," including Arizona, Illinois, Minnesota, and Rhode Island (National Water Quality Inventory, pp. 454). Typically state groundwater protection initiatives employ groundwater quality standards, a system of groundwater classification, a groundwater degradation policy, or a combination of these measures.

Groundwater quality standards. Groundwater quality standards are either numeric or narrative. A numeric standard prescribes an allowable maximum contaminant level for a given groundwater contaminant. Generally, these are set according to an assessment of risk attendant to exposure, risk being a function of severity and likelihood of harm. Many states have adopted federal maximum contaminant levels promulgated under the SDWA. Discharge permit parameters are set and enforced (in theory) so that maximum contaminant levels are not exceeded.

A narrative standard is descriptive of conditions to be maintained to support a designated groundwater use, or may generally prohibit the discharge of particular types of contaminants. It is incumbent upon the discharger to show that the narrative standard is met despite the discharge. Numeric and narrative standards may be used separately or conjointly.

Groundwater classification systems. These rest upon the premise that certain groundwaters are more important, or vulnerable, than other groundwaters. Groundwaters are ranked by indices of potability, ecological sensitivity, or irreplaceability, and permitted uses are designated accordingly. Applicable groundwater quality s tandards may differ depending upon groundwater classification, and often groundwater classifications determine a state's remediation priorities.

Degradation policies. Such policies essentially state tolerable degrees of groundwater degradation. An antidegradation policy generally preserves groundwater in its natural condition. A nondegradation policy permits no further contamination of groundwater to which it applies. Under some degradation policies some degradation is sometimes allowed, however; and neither nomenclature nor policy is ever immutable.

Enforcement attitudes, policies, and procedures vary among the states as well. A recent survey of state environmental protection agencies reveals a startling inconsistency in institutional responses even to the most commonly reported incidents of groundwater contamination, and in many agencies a woeful lack of procedural or methodological standards.